Tawnos said:
Sorry for the misspeak.
Like the NHLPA wouldn't file a complaint. And once they filed a complaint, the NLRB would probably file an injunction until they review the matter. The end result is exactly the same, the NHL cannot *successfully* declare an impasse without the NLRB. It's not actually an injunction, but once the NHLPA files the bad faith complaint, which they definitely would, then the NHL can't implement it's deal without the result the NLRB hands down. Read the rest of that link further up, it explains all of that too.
Actually, I don't think the NLRB would necessarily grant a preliminary injunction. The NLRB is under no obligation to grant an injunction while adjudicating the matter.
The circumstances here are much different than MLB in 1995 - where the injunction was granted basically because MLB F***ed up.
MLB had not declared an impasse (actually they had in December '94 but rescinded the declaration in February '95) and still unilaterally made changes in Free Agency and Arbitration. The NLRB ruled that these changes touched upon mandatory subjects of collective bargaining and could not be changed without a declaration of impasse and in doing so MLB had comitted an unfair labor practice.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/uscircs/2nd/956048.html
The Players Association thereupon filed a new unfair labor practice charge, and the General Counsel issued a complaint alleging, inter alia , that the Clubs and the PRC had violated Sections 8(a)(1) and (5) of the NLRA by unilaterally eliminating, before an impasse had been reached, competitive bidding for the services of free agents, the anti-collusion provision, and salary arbitration for certain reserved players. The NLRB found that these matters were related to wages, hours, and other terms and conditions of employment and were therefore mandatory subjects for collective bargaining. It then authorized its General Counsel to seek an injunction under NLRA §10(j). On March 27, the NLRB Regional Director filed a petition seeking a temporary injunction restraining the alleged unfair labor practices.
The district court agreed that the NLRB had reasonable cause to conclude that free agency and salary arbitration were mandatory subjects of bargaining and that the Clubs' unilateral actions constituted an unfair labor practice. The district court also concluded that injunctive relief was warranted. This appeal followed. We denied a stay on April 4.
The NLRB will only request an injunction if it has reasonable cause to beleive that an unfair labor practice has occured and that the plaintiff would likely win on it's complaint and it felt that the normal procedure would erode the effectiveness of any remedy it would hand down at the conclusion of a lengthy hearing.
In the case of MLB there was a determination of failing to negotiate mandatory subjects which gave reasonable cause for an unfair labor charge. I'm sure the NHL has learned from MLB's mistakes. I haven't seen any bad faith charges against the NHL that would qualify as reasonable cause for a preliminary injunction, although I'm sure the PA will argue otherwise.
Also consider that the makeup of the NLRB is considerably different (and more Republican) than in '95.
Of course, all of this seems moot now, since the league seems to be backing away from any replacement player scenerios, making an impasse declaration unlikely.
I'll add some more. I looked around to see if I could find how frequently preliminary injunctions are issued in cases before the NLRB - in what percentage of NLRB complaints are injunctions (Section 10(j) relief) asked for and granted. The numbers are not that promising for the PA.
From March 3, 1998 through January 15, 2001 359 cases were forwarded to the NLRB's General Counsels Office with recommendation for in injunction.
359 Total Cases
191 Cases General Counsel sought authorization from NLRB (53%)
164 Cases Authorized by NLRB to seek injunction (46%)
64 Cases Resolved by Court decision (18%)
46 Cases Injunctions granted (13%)
Only 13% of all complaints sent to the NLRB from their regional offices with recommendations for an injunction actually had an injunction granted.
http://www.lawmemo.com/nlrb/gc01-03.htm
II. Cases Submitted and Authorized in General
During the period covered by this report, Regional Offices submitted 359 cases with a recommendation regarding Section 10(j) relief to the Injunction Litigation Branch of the Division of Advice.[5] The General Counsel's Office sought Section 10(j) authorization from the Board in 191 cases, a "request percentage" of 53%, as compared to 44% during the prior reporting period. Of these cases, the Board authorized Section 10(j) proceedings in 164 cases, an "authorization rate" of 86%.[6] The Board authorization rate for the 1998 reporting period was 93%.
...
As Appendix A shows, of the 164 cases authorized by the Board, 134 have been pursued to a conclusion at this time.[7] Of these cases, 70 were resolved by a successful settlement, either before or after a petition was filed in court. The proportion of authorized and pursued cases adjusted by settlement, 52%, is consistent with prior 10(j) reporting periods, including the settlement adjustment of 49% during the prior reporting period.
The remaining 64 cases were resolved by court decision, with injunctions granted in whole or substantial part in 46 cases. Thus, of these litigated cases, we were successful in 72% of the cases; this compares well to the litigation success rate of 77% during the 1998 reporting period. All together, we obtained a successful settlement or favorable court decision in 116 cases, a "success rate" of 87% of the cases pursued to a conclusion. This success rate is virtually identical with the 89%, 88% and 87% success rates of General Counsels Collyer, Feinstein and Lubbers, respectively.